FEDERAL COURT OF AUSTRALIA

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The applicant pay the second respondent’s costs of and incidental to the Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1        The applicant is a citizen of Fiji. He first arrived in Australia on 19 November 1987. At that time, he was 11 years of age. He was granted a Class BF Transitional (Permanent) visa in March 1992.

2        The applicant has a lengthy and extensive criminal history. He was subject to a deportation order which was originally made in 1999. That order was revoked in November 2008. On 21 July 2009, a delegate of the second respondent (the Minister) decided not to cancel the applicant’s visa but issued him with a formal warning that cancellation of his visa might be reconsidered if he committed further offences or otherwise breached the character test. Following a further conviction, on 4 March 2011, the Department of Immigration and Citizenship notified the applicant of its intention to consider cancelling his visa. On 11 August 2011, a delegate of the Minister decided to cancel the applicant’s visa and he was notified of this on 12 August 2011. He sought review of this decision in the Administrative Appeals Tribunal. That Tribunal affirmed the cancellation decision on 4 November 2011.

3        The applicant then lodged an application for a protection visa. He did so on 16 December 2011.

4        On 9 January 2012, a delegate of the Minister refused the applicant’s application for a protection visa. The applicant sought review of this decision by the Refugee Review Tribunal (the Tribunal) by way of an application lodged on 16 January 2012. The Tribunal conducted a hearing at which the applicant gave evidence and presented arguments. On 28 February 2012, the Tribunal affirmed the decision of the Minister’s delegate not to grant a Protection (Class XA) visa to the applicant.

5        On 11 April 2012, the applicant filed an Application in the Federal Magistrates Court of Australia in which he sought an order quashing the Tribunal’s decision, an order remitting the matter to the Tribunal and an order extending the time within which he was required to make his substantive application for judicial review.

6        Pursuant to s 477(1) of the Migration Act 1958 (Cth) (the Act), the applicant was obliged to file his Application for Judicial Review within 35 days of the date of the migration decision which he sought to challenge.

7        In the circumstances of the present case, the applicant was obliged to file his Application for Judicial Review by no later than 3 April 2012. He faxed his Application to the Federal Magistrates Court on 5 April 2012. That Court accepted that Application for filing on 11 April 2012.

8        The applicant was, therefore, eight (8) days late in filing his Application.

9        A Federal Magistrate heard the applicant’s application for an extension of time on 14 August 2012. On 13 September 2012, the Magistrate dismissed that application (SZRIQ v Minister for Immigration and Citizenship [2012] FMCA 823).

10        Section 476A(3)(a) of the Act provides that an appeal may not be brought to this Court from a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under s 477(2) of the Act.

11        Confronted with the circumstance that he had no right of appeal from the Federal Magistrate’s decision, on 1 November 2012, the applicant brought an application in this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) (s 39B), in which he sought the following relief:

1.    An order that a writ of CERTIORARI issue, directed to the first respondent, to quash the order of the first respondent on 13 September 2012 dismissing the applicant’s application for an extension of time within which to apply for review of the decision of the third respondent to affirm the decision of a delegate of the second respondent to refuse to grant the Applicant a protection visa.

2.    An order that a writ of MANDAMUS issue, directed to the first respondent, requiring the applicant’s application for extension of time under section 477 of the Migration Act 1958 be determined according to law by a justice of the Federal Magistrates Court of Australia other that his Honour Federal Magistrate Robert Cameron.

3.    Costs.

12        That application was supported by an affidavit sworn by the applicant’s solicitor on 1 November 2012.

13        At par 6 of his affidavit, the applicant’s solicitor set out the grounds upon which the applicant intended to rely in support of his claim for relief pursuant to s 39B. He said:

6.     The grounds of the Application are as follows:

(a)    The First Respondent misapprehended the test to be applied under s.477(2)(b) of the Act in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act.

(b)    In determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act the First respondent failed to consider the impact of s 476A(3) on the interests of the administration of justice and thereby:

(i)    Failed to take into account a relevant consideration; and

(ii)    Denied the Applicant procedural fairness.

14        The first and third respondents filed submitting appearances. The Minister was, therefore, the only active respondent.

15        These Reasons for Judgment determine the applicant’s application for relief pursuant to s 39B.

16        Neither party submitted that the Court lacked jurisdiction to entertain the present application. After considering the matter and receiving a Written Submission from the applicant on the question of jurisdiction, I was satisfied that the Court had jurisdiction.

THE JUDGMENT OF THE FEDERAL MAGISTRATE

17        In his Reasons for Judgment, after a brief introduction, the Federal Magistrate set out a number of background facts at [4]–[8] of those Reasons. Those facts picked up the summary of relevant facts set out by the Tribunal at pp 4–7 of its Decision and supplemented that summary by reference to the claims made by the applicant at the hearing before the Tribunal.

18        At [9] of his Reasons for Judgment, the Federal Magistrate set out, in summary form, the reasons which the Tribunal gave for affirming the delegate’s decision. His Honour said:

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:

a)    the Tribunal did not accept that the applicant would be treated as a second-class citizen in Fiji or that he would be targeted, whether by the military, the army or the general population, because of his Indian ethnicity. The Tribunal found that the applicant’s claims in this regard were contrary to country information which indicated that Indo-Fijians comprised 37% of the population, that the 2006 coup was perceived as being Indo-Fijian and that there had been some moderation of the anti-Indian sentiment which initially accompanied it. The Tribunal also noted that it was unable to locate any information about Indo-Fijians being targeted by the police or the military for arbitrary arrest or detention;

b)    the applicant’s claim that he would be targeted in Fiji because he had expressed his political opinion and caused fighting in prison was, in the Tribunal’s opinion, far-fetched for the following reasons:

i)    the applicant provided no details about the individuals who were allegedly concerned about the expression of his opinion and the resultant disturbance, nor of their contacts with the Fijian military or police. The existence of such connections appeared to be nothing but mere assertion; and

ii)    the Tribunal did not accept that the applicant’s political expression in prison would be of any interest to the Fijian authorities, given that country information suggested that those authorities were more interested in high profile individuals and the public expression of political views;

c)    the Tribunal noted that the applicant had not engaged in any political activities other than the expression of political views in prison. It also noted that at its hearing the applicant stated that he did not belong to any political organisation or party. In the circumstances, the Tribunal did not accept that the applicant had a genuine interest in the expression of political views. The Tribunal did not accept that the applicant would therefore engage in any political activities were he to return to Fiji and found that there was no real chance that he would be persecuted in Fiji because of his political opinion;

d)    the applicant claimed that he would be denied state protection because of his Indian ethnicity and because of the relationships between the authorities and those who were involved in or affected by the prison in-fighting. However, the Tribunal found that this was merely an assertion by the applicant and did not accept that he would be denied protection by the authorities for any reason. Further, the Tribunal said that even were it to accept that the police would deny the applicant protection because of corruption, this would not be for a Convention reason;

e)    while the Tribunal accepted that people might not wish to associate with the applicant or might look down on him because he had spent time in gaol, it did not accept that this amounted to serious harm; and

f)    the applicant stated at the hearing that he would have no support in Fiji, that he had no family and no skills to obtain a job. He also spoke about the generally poor situation in Fiji. In the Tribunal’s opinion, none of these matters gave rise to Convention-related persecution.

19        At [12]–[16] of his Reasons, his Honour referred to s 477(2) of the Act and noted that the applicant had supported his application for an extension of time by giving reasons why it was in the interests of the administration of justice that he be granted such an extension of time.

20        I pause to note that, in the first version of his Application in the Federal Magistrates Court, the applicant specified the following ground pursuant to s 477(2)(a) of the Act:

Unrepresented and seeking to retain a solicitor.

Currently engaged in negotiations with [a named solicitor].

In one of his affidavits filed in support of his Application for an Extension of Time, the applicant said that he had been unable to lodge his Application in time because it had taken three days in the detention centre to arrange a Justice of the Peace to witness his supporting affidavit.

21        These grounds remained as the grounds relied upon by the applicant.

22        The solicitor for the applicant testified before me that Counsel who appeared before the Federal Magistrate had cited the case of Yu v Minister for Immigration and Citizenship (2009) 236 FLR 251 (Yu) at [40]–[41] in support of the proposition that an extension of time “… would avoid duplicate litigation in the high or federal courts”.

23        The matters to which I have referred at [20] above no doubt were intended to provide an explanation for the applicant’s delay in filing his judicial review application.

24        Neither in his Application nor in his affidavit in support did the applicant specify any other reasons why an extension of time should be granted.

25        It appears from the speaking notes of Counsel who appeared at the hearing before the Federal Magistrate that the only paragraph from Yu relied upon by him at that hearing was [41] (at 236 FLR 261–262) and that this paragraph was relied upon in support of a submission that, insofar as the grounds relied upon by the applicant in support of his substantive judicial review application needed to be considered at all, the applicant only had to demonstrate that he had an arguable case. Counsel did not mention [40] of Yu (at 236 FLR 261) and did not submit that the Federal Magistrate was obliged to consider the impact of s 476A(3)(a) of the Act and the desirability of allowing an applicant access to the Federal Court’s appellate jurisdiction.

26        At [15]–[16] of his Reasons, the Federal Magistrate said:

15.    The next matter to be considered is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. Although the Court is not limited to particular matters when considering the exercise of this discretion, in the present case the relevant issues appear to be whether the applicant has demonstrated a satisfactory explanation for the delay in the commencement of these proceedings, whether the Minister would suffer any prejudice if time were to be extended and whether the allegations made in the application have reasonable prospects of success.

16.    In relation to the latter question, the issue is whether the applicant has reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

27        At [17]–[22], his Honour dealt with the question of whether the applicant had provided a satisfactory explanation for his delay and whether there was any prejudice occasioned to the Minister by reason of his delay. At [21], his Honour concluded that the applicant had provided a satisfactory explanation for his delay in commencing the proceedings in the Federal Magistrates Court. At [22], his Honour also concluded that there was no prejudice to the Minister.

28        At [23], his Honour then embarked upon an assessment of whether the applicant’s substantive Application for Judicial Review had reasonable prospects of success. His Honour addressed that question by reference to the case which the applicant was seeking to make. The applicant had foreshadowed three main contentions: First, that, in conducting its review, the Tribunal had breached s 424A of the Act. Second, in conducting its review, the Tribunal had breached s 425 of the Act. Third, that the objective bystander would have had a reasonable apprehension that the Tribunal was biased against the applicant, having regard to all of the relevant circumstances.

29        Given the nature of the present application, it is not necessary for me to traverse in any detail the reasons given by the Federal Magistrate for his ultimate conclusion that the applicant did not have reasonable prospects of succeeding in his foreshadowed application for judicial review.

30        I propose to address any matters of detail in the reasons given by the Federal Magistrate for this latter conclusion to the extent that it may be necessary when dealing with the two grounds relied upon by the applicant in this Court in support of his claim for s 39B relief.

31        After addressing the three grounds of judicial review foreshadowed by the applicant, at [68]–[69] of his Reasons, the Federal Magistrate concluded:

68.    Although I have concluded that the applicant has provided a reasonable explanation for the delay in commencing these proceedings, as the allegations in the substantive application do not have reasonable prospects of success, I conclude that it would not be in the interests of the administration of justice to extend the time within which these proceedings may be brought.

69.    Consequently, the application for an extension of time to bring the proceedings will be dismissed.

CONSIDERATION

Ground 1—Jurisdictional Error: Misapprehension of the Criterion for Extending Time

The Parties’ Submissions

32        The applicant submitted that the Federal Magistrate committed jurisdictional error by failing to apply the correct test set out in s 477(2)(b) for the grant of an extension of time within which to seek a remedy pursuant to s 476.

33        In broad terms, the applicant contended that the Federal Magistrate set the bar too high when he came to consider the strength of the substantive judicial review application foreshadowed by the applicant. The applicant submitted that it was not incumbent upon him to establish that the grounds of review which he had foreshadowed would definitely succeed but rather that all that he needed to show was that his contentions were not frivolous or were reasonably arguable.

34        It was common ground before me that the Federal Magistrate was correct when he concluded that the applicant had provided a reasonable explanation for the short delay in filing his Application for Judicial Review and that there was no prejudice occasioned to the Minister by reason of that delay. These two conclusions were expressly and favourably taken into account by the Federal Magistrate in carrying out the task required of him by s 477(2)(b) of the Act.

35        In support of ground 1, the applicant made the following submissions:

(a)    The critical clause in both subpars (a) and (b) of s 477(2) of the Act is “… that it is necessary in the interests of the administration of justice to make the order.”

(b)    The same clause appears in s 486A(2) of the Act which provides a specific statutory foundation for the High Court to extend time and in s 477A(2) which is a similar provision applicable to the Federal Court.

(c)    Authorities in the Federal Magistrates Court, in this Court and in the High Court suggest that, in circumstances where the Federal Magistrates Court has regard to the merits of the grounds of judicial review foreshadowed by an applicant for an extension of time made in that Court, the Federal Magistrate only needs to be satisfied that the grounds of review are reasonably arguable. The merits of an application may be sufficient, even if they are weak, where the delay is trivial and there is no prejudice to the Minister. On the other hand, there may need to be strong merit where there has been a long delay, where there is no reasonable excuse and where there is some prejudice to the Minister. In support of these propositions, the applicant relied upon the following authorities: Mpunzwana v Minister for Immigration and Citizenship [2009] FMCA 901 (Mpunzwana); Yu; Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [20]; Huynh v Minister for Immigration and Citizenship [2012] HCA Trans 39 (14 February 2012) (per Bell J); MZXLD v Minister for Immigration and Citizenship [2009] HCA Trans 282 (23 October 2009) (per Crennan J); MZYMW v Minister for Immigration and Citizenship [2012] HCA Trans 230 (19 September 2012) (per Crennan J); and Plaintiff B60 of 2012 v Minister for Foreign Affairs [2012] HCA Trans 305 (23 November 2012) (per Kiefel J).

(d)    In the present case, when he came to consider the applicant’s application for an extension of time, the Federal Magistrate adopted a more stringent test. There was no basis upon which his Honour could reasonably have found that each of the grounds intended to be relied upon were without any merit whatsoever. In concluding that the substantive application for judicial review did not have reasonable prospects of success, his Honour did not weigh in the balance the applicant’s explanation for his delay and the serious consequences that would flow to the applicant in the event that the Magistrate decided to dismiss the applicant’s application for an extension of time.

(e)    The approach which the Federal Magistrate took was incorrect and therefore unlawful. He failed to balance all relevant considerations. Ordinarily, it will not be in the interests of the administration of justice to dismiss an application for an extension of time solely for insufficient merit. The Court should only do so if the grounds advanced by the applicant have no arguable merit.

36        The Minister submitted that the critical clause in s 477(2) of the Act cannot sensibly be understood to operate as raising a separate preliminary question for the consideration of the Federal Magistrates Court. The Minister went on to submit that, when proper regard is given to the chapeau of s 477(2), the framing of the order contemplated by that chapeau involves a judgment about the appropriate duration of any extension. Thus, so it was submitted, satisfaction of the condition in s 477(2)(b) cannot be ascertained except by reference to the content of the proposed exercise of discretion. The exercise does not involve separate steps. Put another way, once the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending time, it should exercise the power to make such an order. It would be a wrong approach for the Court, having reached that level of satisfaction, nonetheless to decline to make an order extending time.

37        The Minister also submitted that, properly understood, s 477(2)(b) does not represent a condition which, if satisfied, authorises or requires the Court to embark upon a consideration of whether to extend time. Rather, it states the test which the Court is to apply in the course of that consideration.

38        The Minister also submitted that a proper understanding of the nature of the alleged error is critical because of the distinction drawn by the High Court in Craig v South Australia (1995) 184 CLR 163 (Craig) between the application of the concept of jurisdictional error to administrative tribunals, on the one hand, and its application to inferior courts, on the other hand. The Minister submitted that the express ratio decidendi of Craig was that, even if the South Australian District Court Judge in that case had erred by misunderstanding the effect of relevant authorities, that error was not a jurisdictional error (Craig at 186). The Minister also relied upon the High Court’s discussion of jurisdictional error in Craig at 176–180.

39        The Minister drew my attention to the fact that, although it may be thought that the justices of the High Court who comprised the majority in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 573 [69]–[70] had expressed some reservations about the passage in the judgment of the High Court in Craig at 179–180 relied upon by the Minister, nonetheless Craig has not been overruled by the High Court and the distinction upon which the decision in Craig was based remains good law.

40        The Minister also submitted that, unless it could be said that the Federal Magistrate had misconceived the nature of his function or the extent of the powers which he was called upon to exercise in the circumstances of this case, his Honour could not be said to have fallen into jurisdictional error.

41        The Minister went on to submit that, even if an error of the kind identified by the applicant in the present case could properly be regarded as jurisdictional error, the material before the Court does not establish that the Federal Magistrate fell into such an error. The Minister noted that the Federal Magistrate had identified three matters to which he intended to have regard. The first was whether there was any adequate explanation for the applicant’s delay. The second was whether there was any prejudice to the Minister. The third was whether the grounds of review to be relied upon by the applicant had reasonable prospects of success. There was nothing wrong with that approach. Because an assessment of the applicant’s prospects of success in his substantive judicial review application was a critical factor in the present case, the Federal Magistrate gave very close attention to the foreshadowed grounds of review and, in light of the attention which he gave to those grounds, came to the conclusion that none of them had any prospect of being made good. The Federal Magistrate’s conclusions should be understood as conclusions on the substantive issues held with a sufficient degree of confidence to regard the applicant’s prospects as less than “reasonable”. There was no requirement for his Honour to go so far as to describe the grounds as “without merit” or “not arguable” although it is fairly obvious that he had come to the view that, in his opinion, those grounds were not arguable.

42        The Minister went on to submit that the case was not one where additional evidence on the substantive issues was likely to emerge at a final hearing of those substantive issues.

Decision

43        Section 477(1) and (2) provide:

477     Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

…

44        Section 476A(3)(a) is in the following terms:

476A     Limited jurisdiction of the Federal Court

…

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

…

45        Section 477(2) requires an applicant for an extension of time to make his or her application in writing and to specify in that application why the applicant considers that it is necessary in the interests of the administration of justice to make the order (s 477(2)(a)). The section also requires that the Federal Magistrates Court be satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time before making such an order. The material to which the Court’s attention will ordinarily be directed for the purpose of the Court’s consideration of whether it is so satisfied will be the material relied upon by the applicant for an extension of time. The Federal Magistrates Court will not be confined to a consideration of the applicant’s material alone but that material will nonetheless constitute an important part of the material upon which the Federal Magistrates Court might reach the requisite level of satisfaction.

46        There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

47        The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a)    Whether there has been a reasonable and adequate explanation for the applicant’s delay;

(b)    Whether there is any prejudice to the Minister;

(c)    Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

48        The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

49        The essence of the applicant’s complaint in the present case is that the Federal Magistrate did not weigh all relevant factors in the balance and applied the wrong test in any event.

50        In Craig, at 176–178, the High Court said:

Jurisdictional error

In considering what constitutes “jurisdictional error”, it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court.

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (See. eg, R v Dunphy; Ex parte Maynes (1978) 139 CLR 482: R v Gray; Ex parte Marsh (1985) 157 CLR 351 at371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132.).

51        The High Court went on to say (at 179–180):

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

52        In my judgment, it was within the power which the Federal Magistrate was exercising in the present case for him to choose which factors he regarded as relevant to the exercise of his discretion and thus to select those factors which he intended to take into account when determining whether it was necessary in the interests of the administration of justice to grant an extension of time to the applicant. The Federal Magistrate did so in conventional terms. In particular, he expressed the third factor which he intended to take into account as “… whether, if time were to be extended, the substantive application would have reasonable prospects of success” (at [23] of his Honour’s Reasons). This is not different, in substance, from other expressions used to state the test such as “reasonably arguable” or “arguable”. In addressing that factor, his Honour gave close attention to the merits of the applicant’s foreshadowed grounds of review. He did so, in my view, because he was mindful of the fact that the critical question in the present case was whether the grounds of review had sufficient substance to justify an extension of time. It was for this reason that his Honour paid close attention to those grounds of review. Having done so, the substance of his Honour’s conclusion was that none of the three grounds of review relied upon had any merit whatsoever. All that his Honour did was to express, in rather firm language, his ultimate conclusion that the merits of the applicant’s grounds of review were so weak as not to justify any extension of time.

53        For these reasons, I do not think that his Honour fell into the error attributed to him by the applicant. Furthermore, even if it could be said that his Honour did fall into the error attributed to him, I do not think that that error was a jurisdictional error. His Honour did not misconceive his task nor the extent of his powers. His Honour addressed the relevant statutory task by considering a number of relevant factors. They were of his choosing and were relevant considerations. His Honour committed no error in taking the approach which he did.

54        It will be apparent from what I have said that I think that the Minister’s submissions in respect of ground 1 are correct and I accept them.

55        I therefore reject ground 1.

Ground 2—Failure to Take into Account a Relevant Consideration and Denial of Procedural Fairness

The Parties’ Submissions

56        The applicant contends that the Federal Magistrate was obliged to consider the impact of s 476A(3)(a) of the Act when determining whether it was necessary in the interests of the administration of justice to grant the extension of time. The applicant submitted that the Federal Magistrate failed to take into account the impact of that subsection and thereby failed to take into account a relevant consideration and also denied procedural fairness to the applicant.

57        In support of ground 2, the applicant submitted that:

(a)    The Federal Magistrate made no reference to the effect of s 476A(3)(a) of the Act;

(b)    The impact of that subsection was a relevant consideration that the Federal Magistrate was bound to take into account; and

(c)    At par 32 of his Written Submissions-in-Chief:

The Federal Magistrates Court is an inferior court. The legislature intended that the Federal Court would have appellate supervision over the Federal Magistrates Court. There is an obvious interest of the administration of justice to permit appellate review on the substantive legal issues without resort to the High Court or the need to launch proceedings such as this in the Federal Court. Further, it is in the interests of the administration of justice for the decisions of inferior courts to be subject to appellate review.

58        The applicant also submitted that the Federal Magistrate denied procedural fairness to the applicant by failing to evaluate his case. It was submitted that the applicant had put a clearly articulated argument to the effect that the Federal Magistrate ought to weigh in the balance the impact of s 476A(3)(a) when performing the task required of him by s 477(2)(b) of the Act and that he simply failed to do so. It was submitted that the Court should find that he failed to do so because he had made no reference to that subsection in his Reasons for Judgment.

59        The Minister answered these submissions both orally and in writing.

60        First, the Minister submitted that I should infer that the consequence of his decision as provided for by s 476A(3) of the Act was so obvious that the Federal Magistrate, as an experienced judicial officer, should be taken to be well aware of the terms of that subsection. In addition, the Minister submitted that, even if the Federal Magistrate was required to take into account the impact of s 476A(3)(a) and even if he did not do so, his failure to do so did not amount to jurisdictional error (Craig at 180).

61        In his Supplementary Submissions furnished to the Court after the hearing, the Minister addressed the procedural fairness aspect of ground 2 in more detail. He drew my attention to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 (Dranichnikov). He referred to the dictum of Gummow and Callinan JJ (Hayne J agreeing) to the effect that to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord Mr Dranichnikov natural justice (Dranichnikov at 394 [24]). This was said to be a constructive failure to exercise jurisdiction (Dranichnikov at 394 [25]).

62        The Minister submitted that these remarks by some justices of the High Court should not be understood as establishing that any failure by a decision maker to discuss in his or her reasons a “clearly articulated argument”, raised by a person entitled to a hearing, constitutes a denial of procedural fairness. Whether such a failure did or did not constitute a denial of procedural fairness would depend upon a careful consideration of all of the circumstances of the particular case. The Minister went on to submit that, if an argument is heard and understood, but then dismissed as irrelevant, no denial of procedural fairness is involved. In Dranichnikov, the failure on the part of the Tribunal to “respond to” the argument must be understood as being a reference to a failure to absorb or pay attention to the argument which, because it had been clearly articulated and was substantial, was a denial of procedural fairness because it amounted to a denial of an opportunity to present the argument at all.

63        The Minister went on to submit that, when proper regard is had to the duty of a judge to give reasons, it is apparent that that duty is not sufficiently precise in its scope to permit any inference, in connection with the exercise of a discretion, that an issue or argument which is not mentioned in the judge’s reasons was not attended to. The Minister submitted that additional evidence would be needed to make out such an allegation.

Decision

64        There is a certain tension between the applicant’s submission at par 32 of his Written Submissions-in-Chief and the clear statutory prohibition on any appeal to this Court from a decision of a Federal Magistrate that makes an order or refuses to make an order under s 477(2). Contrary to the applicant’s submission, the legislature intended that there would be no appellate review of a determination by the Federal Magistrates Court of an extension of time application pursuant to s 477 of the Act.

65        However, in the present case, when regard is had to the conclusions which the Federal Magistrate reached in respect of the prospects of the appellant’s foreshadowed grounds of review, even if it were necessary or perhaps appropriate for the Federal Magistrate to have specifically addressed the fact that there would be no appeal from his decision (whichever way it went), there is no basis for a finding that the Federal Magistrate failed to turn his mind to the point. The mere fact that he did not mention the subsection is neither here nor there.

66        The applicant has not persuaded me that the Federal Magistrate did not turn his mind at all to the impact upon the applicant of his decision to refuse an extension of time. All that the Federal Magistrate was required to do was to consider whether he should take into account the prohibition on an appeal from his refusal as one of the matters to be weighed in the balance by him. Even if the exposition of the relevant principles relied upon by the applicant are correct, it is incumbent upon the applicant to demonstrate that the Federal Magistrate did not even consider whether the terms of s 476A(3)(a) should be taken into account by him in discharging the task required of him by s 477(2)(b) of the Act. The applicant has failed to demonstrate this fundamental proposition relied upon by him.

67        In any event, I am not at all persuaded that Counsel who appeared for the applicant before the Federal Magistrate clearly articulated the argument that the Federal Magistrate was obliged to consider the impact of s 476A(3)(a) upon the applicant as a relevant factor to be weighed in the balance when determining whether or not to grant an extension of time. The applicant did not tender before me the transcript of the hearing before the Federal Magistrate. Rather, as I have noted at [25] above, he relied upon hearsay evidence from his solicitor as to what transpired before the Federal Magistrate. When close regard is paid to the evidence of the applicant’s solicitor in this respect, it is far from clear that Counsel for the applicant submitted to the Federal Magistrate that he was obliged to take into account or, at least, to consider whether or not to take into account the fact that there was no appeal from his decision. It would have been an easy matter for the applicant to tender the transcript of the hearing before the Federal Magistrate in order to satisfy me on this point.

68        For all of these reasons, I am not persuaded that the principles explained by the High Court in Dranichnikov are engaged in the present case.

69        I should say that I have some difficulty in accepting that a Federal Magistrate called upon to make a decision under s 477(2)(b) of the Act must always consider the impact of s 476A(3)(a) on the applicant. Apart from anything else, an applicant who does not obtain an extension of time can seek relief in this Court pursuant to s 39B or in the High Court in the original jurisdiction of the High Court. Redress for such an applicant is not completely unavailable. Furthermore, in a case where the Federal Magistrate concludes that the extension of time applicant’s prospects of succeeding in his or her substantive application are so weak as to be without merit, it seems highly unlikely that the absence of a right of appeal would persuade the Federal Magistrate to grant the claimed extension of time. On the other hand, in circumstances where there is a reasonable explanation for the applicant’s delay, no prejudice to the Minister and a reasonably arguable case on the merits, the fact that there was no right of appeal to this Court would add very little to the outcome. In the latter circumstances, the Federal Magistrate would be likely to grant the extension of time because it was appropriate to do so. It is difficult to see how the absence of a right of appeal would have any influence on that positive outcome.

70        The applicant has failed to make out ground 2. Accordingly, I reject it.

CONCLUSIONS

71        The applicant has failed to make out either of the grounds upon which he relied. Accordingly, his application must be dismissed with costs.

72        There will be orders accordingly.

Associate:

Dated:    28 November 2013